Author’s note from Attorney Howard Iken: Divorce is a complex legal process that requires careful preparation and planning. It starts with gathering all the necessary financial and legal documents such as tax returns, income records, banking information, real estate documents, and more. The person initiating the divorce files a petition which is then served on the other spouse.
After this, both parties have to disclose their financial status to each other and the court, a process known as Mandatory Disclosure. Additional documents may be requested through Discovery.
Negotiations and mediations are carried out to reach a settlement, which if successful, results in a final hearing and the issuance of a divorce decree. If no settlement is reached, the case may go to trial where the judge will hear testimonies and review evidence to arrive at a decision.
Throughout the process, various legal procedures such as motion hearings, depositions, subpoenas, and pretrial hearings may be utilized to resolve specific issues or gather more information. The final outcome of the divorce is usually a compromise between both parties, with the final judgment reflecting the terms of the settlement.
Even though “divorce is in the air” for many months before the actual case filing, normally one person or the other is the one that visits an attorney and moves things forward. It really does not matter which of you begins the divorce. But in general, the one that sees an attorney, prepares, and initiates the filing tends to be the one more satisfied and also tends to be the one that feels in control. Other than that – it does not matter which of you starts the process.
Gather Your Information
People that are good at organization tend to do a better job at gathering the necessary information. Because this is such an important event in your life you should make a big effort to get organized and remain organized. Purchase several large three-ring binders with tabs. While you are at it, get a couple of strong boxes to store documents. The beginning of the case is the best time to gather all needed documents. You should gather and organize any potentially needed documents even if your attorney does not ask for them upfront. You will need to order some documents and now is the time to start.
Get together all the following documents:
Federal Income Tax Returns. Copies of all returns, including amended returns, for the last four (4) years whether the same be in your name individually or jointly with anyone else, in your possession or under your control, including W-2 Forms.
Partnership Tax Returns. Copies of all partnership tax returns of any and all partnerships in which you hold an interest.
Corporate Tax Returns. Form 1120 and copies of all federal and state income tax returns and profit and loss statements for any and all private and closely held corporations, joint ventures, business entities, or other corporations where you have a shareholder’s interest of ten percent (10%) of the. issued capital stock or professional associations in which you hold an interest.
Income Records. Records reflecting gross income and net income received by you either directly or indirectly since the last produced tax return, to the present, as well as your employee earning records prepared by your employer for the last twelve (12) months.
Banking Information. Any and all of the following items which are in your possession or under your control, whether held individually or jointly with anyone else, or in which you have an interest, or any account in which you have the right to withdraw any funds, whether or not your name appears on said account, during the last four (4) years, involving any financial institutions:
- Checking Accounts
- Savings Accounts
- Certificates of Deposit
- Money Market Funds
- Ready Cash Accounts
- Credit Union Accounts
- Any other similar accounts
If possible, include the following:
- All Monthly Statements
- All Deposit Slips
- All Withdrawal Slips
- All Canceled Checks
- Check Stubs and Check Registers
- All Savings Account Books
- All Credit Union Account Books
- Copies of all Certificates of Deposit
- All other similar records
Brokerage Account Statements. All records, including but not limited to statements and other documents involving any stock, bond, mutual fund, and note or security ownership in which you either individually or jointly with anyone else (including your spouse) have or had an interest in during the last four (4) years.
Credit Cards. All receipts, records of payments, bills, invoices, and checks evidencing payments, as well as any other documents, correspondence, or memoranda in your possession or under your control involving all credit cards which you might have used within the last year, whether or not the specific charges were authorized or signed by you or by any other party, including but not limited to the following: Visa, American Express, MasterCard, Diner’s Club, all gasoline credit cards, and all department store credit cards.
Pension Plans. All records and documents in regard to any retirement fund, trust fund, profit sharing plan, pension plan, IRA account, KEOGH plan, or any other similar plan involving you, including but not limited to the following documents:
- A. A copy of all of the plan and trust documents with all amendments, modifications, and changes.
- B. Copies of 5500/500-C, 500-B, and 5500-SSA, if applicable, for the past four (4) years.
- C. Copy of the trust asset statement as of the most recent plan anniversary.
- D. Copy of the most recent Summary Plan Description.
- E. If there are individual insurance or annuity contracts in force in the plan, a copy of the actual contracts.
- F. If this is a profit sharing or defined contribution plan, a copy of the record of the individual account balance as of the last valuation date.
- G. If this is a defined benefit pension plan, a copy of the latest actuarial valuation specifying cost methods and all actuarial assumptions being used.
- H. If there have been any loans made from the plan, a copy of the Note signed in support of the loan.
Real Estate. All records in regard to any real property, either owned or leased, either individually or jointly with anyone else, during the last five (5) years, including the Deed or an accurate copy of the same, all Closing Statements in regard to the purchase or sale of said property and all copies of any Notes and/or Mortgages, as well as all records in regard to any real property during the last four (4) years in which you were involved in the purchase in any way that was placed in someone else’s name. Also all records and other documents of any appraisals or evaluations of any of the above real property, including any appraisals done for ad valorem tax purposes by any governmental body.
This is the paperwork that will be served on the other spouse. Normally a petition asks for everything in the world – including a request for the other spouse to pay everyone’s attorney fees. But the reality: just because the petition asks for something, does not mean that person will get it. A properly put-together petition will include a request for everything. That is necessary because there is a legal rule that governs all petitions (and lawsuits). The governing rule is that unless you ask for something, you cannot possibly get it. So most attorneys play it safe and ask for everything under the sun in their petition.
Serving Papers on Your Spouse
All new divorce petitions must be personally served on the other party by a certified process server. Registered mail will not do the job. Neither can a spouse personally hand a copy to the other spouse. The process server “delivers” a copy of the petition with a court summons to the other party. The process server then files a sworn affidavit that says the petition was “served.”
Financial Disclosure – Mandatory Disclosure
If you properly followed the steps shown in “gather information,” then your job is just about done. In the State of Florida, each side must automatically give a basic set of financial disclosure documents to the other side shortly after a new divorce case is filed. The basic disclosure is called Mandatory Disclosure. That basic set of information includes a Financial Affidavit, tax returns, paycheck stubs, and possibly a copy of retirement account statements.
After the basic Mandatory Disclosure, either side can request a more intensive list of documents from the other side. The courts call that process “Discovery.” Either side can pretty much request anything they want as long as the request is related to the case.
Some divorcing couples and/or attorneys negotiate continuously throughout a divorce case. Some people and some attorneys cannot seem to get along enough to discuss potential settlement. You are free to negotiate anytime throughout the case. Anything said or written in the context of negotiation is never admissible in court. There is a specific statute that says that. The statute was created to encourage negotiation.
Everyone in a divorce case must attend at least one mediation. Some judges require two mediations. Mediation is a meeting between the spouses, attorneys, and an appointed mediator for the purpose of trying to settle the case. Most mediations last 3-5 hours. They can be held in the courthouse, at someone’s office, or at a facility owned by the mediator. The goal of mediation is to create a settlement contract, get everyone’s signature, and to file a copy with the court.
Final Hearing after a Successful Divorce Mediation
More mediations are successful than not. Most cases are settled and end quietly. And only one out of a hundred cases go to trial. If you are one of the 99, your case will go to a short final hearing. When there is an agreement in place, everyone that attends court is happy. That includes the soon-to-be ex-spouses, the attorneys, the bailiff, and the judge. Final hearings after a successful mediation are short, stress-free, and end with a court decree declaring you single.
Case Management Conference
More and more courts are now requiring multiple case management conferences (CMC). A CMC is a short, 10-minute hearing that allows the judge to take a look at the case to see what is holding it up. Many courts set up CMC dates every couple of months. Both the client and the attorney from each side need to show up. Most judges refuse to make substantial decisions at a CMC. But during a CMC, many judges will set a trial date if they think the case needs to be pushed to the end. Some judges will also address the failure to follow disclosure rules.
Motion hearings are relatively short hearings that are intended to “fix” a particular situation. Most motion hearings last between a half hour and three hours. Between the time the petition is filed and the date of the trial – there are many issues that come up that simply cannot wait till the end for a decision. Motion hearings can be used to address those situations. Some examples are requests for interim support, temporary custody, or to get an advance of money for attorney fees.
In high-conflict cases, many attorneys choose to “depose” witnesses. A deposition involves the attorney, the witness, and a court reporter. It is conducted at a private office. During a deposition, an attorney gets to ask questions to see what the answer will be – before a judge gets to hear the answer. Depositions are very useful in digging for information. Many attorneys use them as a “pressure tool.” Depositions are expensive and are normally not used in low-budget cases.
If you need documents from a bank, hospital, financial institution, or employer, then a subpoena can be used to get those documents. Subpoenas are normally issued by attorneys and they must be served by a process server.
If your case has not settled and is on its way to trial, changes are the judge will require a pretrial. A pretrial is a “ground rules” setting session. The judge will want to know what issues remain to fight over. Each side must tell the judge their intended witnesses, and list of documents to be presented as evidence. At or about that time each side must send a copy of their evidence to the other side.
Final Trial when Issues Are Still Contested in a Divorce
The trial is not a “fun” process for anyone. It is expensive, nerve-wracking, and can result in unexpected outcomes. You only go to trial if there is no agreement in place. Very few cases go to trial but it still is a regular occurrence in the courthouse.
In a trial, the judge will observe each side’s presentation of their case. The judge will listen to each spouse, will listen to witnesses, and will view admissible evidence. In some cases, a child psychologist or a CPA will arrive to testify.
The judge will take everything presented into account, will review the prevailing law, and will ultimately come to a decision. Most judges will not present their decision during the trial. Most send out their decision after the trial is over. Once the final judgment arrives, you must accept the terms, or make a decision to appeal. Most people decide to live with the judgment. In most cases, the judgment tends to resemble what the parties could have settled on during mediation. Sometimes there is a clear winner and loser. But more often than not – both sides must compromise.